ILLINOIS POLLUTION CONTROL BOARD

~4arch 24.,

1988

IN THE MATTER OF:

PROCEDURAL

RULES FOR EXCEPTIONS

)

R88—1O

TO WELL SETBACK REQUIREMENTS;

SECTION 14.2(c) OF THE ACT

)

PROPOSED RULE.

PUBLIC COMMENT

OPINION AND ORDER OF THE BOARD

(by 3.

Anderson):

This rulemaking proposes

to implement

a provision

of the

Groundwater Protection Act,

P.A.

85—863

(SB 1482), effective

September

24,

1987.

The provision

is found at new Section

14.2(c)

of

the Environmental Protection Act (Act).

Subsection

(c)

reads

as follows:

The

Board may

grant

an

exception

from

the setback

requirements

of

this

Section

and

Section

14.3

to

the owner

of

a new potential route,

a new potential

primary

source

other

than

landfilling

or

land

treating,

or

a new potential secondary

source.

The

owner

seeking

an

exception

with

respect

to

a

community

water

supply

well

shall

file

a petition

with

the Board

and the Agency.

The

owner

seeking

an exception with respect to a potable water supply

well other than

a community water supply well shall

file a petition with

the Board and the Agency,

and

set

forth

therein

the

circumstances

under

which

a

waiver has been sought but not obtained pursuant to

subsection

(b)

of

this

Section.

A petition

shall

be

accompanied

by

proof

that

the

owner

of

each

potable

water

supply

well

for

which

setback

requirements

would

be

affected

by

the

requested

exception has been notified and

been provided with

a copy of the petition.

A petition shall set forth

such

facts

as

may

be

required

to

support

an

exception,

including

a

general

description

of

the

potential

impacts

of

such

potential

source

or

potential

route

upon groundwaters

and the affected

water

well,

and

an

explanation

of

the

applicable

technology—based controls which will be utilized

to

minimize

the

potential

for

contamination

of

the

potable water supply well.

The

Board

shall grant

an exception,

whenever

it

is

found

upon

presentation

of

adequate

proof,

that

compliance

with

the

setback

requirements

of

this

87—327

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Section

would

pose

an

arbitrary

and

unreasonable

hardship

upon

the

petitioner,

that

the

petitioner

will utilize the best available technology controls

economically achievable

to minimize the

likelihood

of contamination

of

the potable

water supply well,

that

the maximum feasible alternative setback will

be

utilized,

and

that

the

location

of

such

potential

source

or

potential

route

will

not

constitute

a

significant

hazard

to

the

potable

water supply well.

Not

later

than

January

1,

1988,

the

Board

shall

adopt

procedural

rules

governing

requests

~or

exceptions

under

this

subsection.

The

rulemaking

provisions

of Title VII

of this Act and of Section

5

of

the

Illinois

Administrative

Procedure

Act

shall

not

apply to such

rules.

A decision made

by

the

Board

pursuant

to

this

subsection

shall

constitute

a final determination.

The granting

of

an exception by the Board shall

not

extinguish

the

water

well

owner’s

rights

under

Section

Gb

of

the Illinois Water Well Construction

Code

in

instances

where

the

owner

has elected

not

to provide

a

waiver pursuant

to

subsection

(b)

of

this Section.

The proposed regulations are the same

in most all procedural

respects

to the RCRA (35 Ill. Adm. Code 700 through

750) adjusted

standards procedural rules

found at 35

Ill. Adm. Code 106.410

through 106.416

(effective August

4,

l987).*

There are two differences

that the Board believes,

nevertheless,

are compatible

to the process.

First,

these

proposed procedural regulations apply to

a statute,

rather than

a

regulation, of general applicability.

Second,

the justification

requirements are contained

in 14.2(c)

of the Act rather than

being specified

in a regulation of general applicability.

The

*

The Board also notes that

a)

the RCRA adjusted standards

procedures

have

been

proposed

to

be

utilized

in

the

Board’s

newly

proposed

landfill

regulations

(see

the

R88—7,

First

Notice

proposal

adopted

by

the

Board

on

February

25,

1988)

and

b)

that

these

RCRA

procedures

are

an

adaptation

of

the

combined

sewer

overflows exception procedure

(see 35 Ill. Adm. Code Subtitle C:

Water Pollution,

Subpart

0,

306.350 through

306.374.

The Board has found over

time,

that these procedures work;

they

allow

for

the gathering

of information and the airing and

adjudication

of

issues

in

a timely, efficient manner.

87—328

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—3—

Board may,

in the future,

seek to adopt

regulations defining the

information which must be included

in a petition to demonstrate

that the statutory requirements have been met.

The Board

solicits comments on whether this can be done under the

provisions of Section 14.2(c).

The Board notes

that Section 14.2(c)

specifies that the

rulemaking provisions

of Title VII

of the Act and Section

5 of

the Administrative Procedure Act shall not apply.

However,

the

Board believes that

there must be an opportunity for public

corrment,

even considering the January

1,

1988 deadline

for Board

action.

The Groundwater Protection Act has only recently been

enacted and

its provisions are numerous and interrelated.

Therefore,

the Board on its own motion will provide for

a public

comment period

for

30 days after publication

in the Illinois

Register.

Following this comment period,

the Board intends

to

expeditfously adopt

a final

rule.

ORDER

The Board directs that the following proposed

rule be

published

in the Illinois Register, and provide for

a

30 day

comment period.

PART 106

GENERAL PROVISIONS

SUBPART E:

WATER ~‘7ELLSETBACK EXCEPTION PROCEDURES

Section 106.501

Scope and Applicability

This Subpart applies

to the provision for exception contained

in

Section 14.2(c)

of the Act.

Section 106.502

Joint or Single Petition

A person may initiate an exception proceeding either by filing a

petition jointly with the Illinois Environmental Protection

Agency (Agency),

or by filing

a petition singly.

Section 106.503

Request

to Agency To Join As Co—Petitioner

a)

The Agency may,

in its discretion, act as

a co-

petitioner

in any exception proceeding.

b)

Any person may request Agency assistance in initiating

a

petition for exception.

The Agency may require the

person

to submit

to the Agency any background

information in the person’s possession relevant to

the

37—329

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—4—

exception which

is sought.

The Agency shall promptly

notify the person

in writing

of its determination either

to join as

a co—petitioner,

or

to decline to join as

a

co—petitioner.

If

the Agency declines

to join as

a co—

petitioner,

the Agency shall state

the basis

for this

decision.

c)

Discretionary decisions made by

the Agency pursuant to

this Section are not appealable to the Board.

Section 106.504

Contents

of Petition

a)

The petitioner shall file ten copies of the petition for

exception with the Clerk of

the Pollution Control Board

(Board),

and shall

serve one copy upon the Agency.

b)

The petition shall contain the following information:

1)

A written statement,

signed by the petitioner and

the Agency,

if the Agency

is

a co—petitioner,

or an

authorized representative,

outlining the scope

of

the evaluation,

the nature

of,

the reasons

for and

the basis of the exception, consistent with the

level of justification contained

in Section 14.2(c)

of the Act,

regulation of general applicability;

2)

The nature of the petitioner’s operations and

control equipment;

and

3)

Any additional information which may be required in

Section 14.2(c)

of the Act.

Section

106.505

Response and Reply

a)

Within 21 days after the filing of

a petition, the

Agency shall file a response to any petition in which

it

has not joined as

a co—petitioner.

This response shall

include the Agency’s comments concerning

the Boarc3ts

action on the petition.

b)

The petitioner may

file

a reply within

14 days after

the

filing of any Agency response.

Section 106.506

Notice and Conduct of Hearing

a)

The Board will hold

at least one public hearing prior

to

granting an exception.

87—330

---

—5—

b)

The hearing officer will schedule the hearing.

The

Clerk will give notice of hearing

in accordance with 35

Ill. Adm. Code 102.124.

c)

The proceedings will be

in accordance with 35

Ill.

Adm.

Code 102.160 through 102.164.

Section 106.507

Opinions and Orders

a)

The Board will adopt an Order

arid Opinion stating the

facts and reasons leading to the final Board

determination, consistent with any considerations which

may be specified

in Section 14.2(c) of the Act.

b)

The Board will issue such other Orders as the Board

deems appropriate,

including,

but not limited

to,

accepting or rejecting the petition, requiring the

submission of further information or directing that

further hearings be held.

c)

Such Board Orders and Opinions will be maintained

for

public inspection by the Clerk of the Board and a

listing of all determinations made pursuant to

this

subpart will be published in the Illinois Register and

the Environmental Register at the end of each fiscal

year.

d)

A final Board determination made under this subpart may

be appealed pursuant to Section 41

of the Act.

IT IS SO ORDERED.

I, Dorothy M. Gum, Clerk of the Illinois Pollution Control

Board, hereby certf

that the ~ove

Opinion and Order was

adopt~donthe ~

day of

~

,

1988,

by a vote

of

(~2

()

/

(,T

/~‘

~

Dorothy M.

~(~flfl,

Clerk

Illinois Pollution Control Board

87—331