ILLINOIS POLLUTION CONTROL BOARD
June
30,
1988
IN THE MATTER OF:
)
PROCEDURAL RULES FOR EXCEPTIONS
)
R88—lO
TO WELL SETBACK REQUIREMENTS;
SECTION 14.2(c) OF THE ACT
ADOPTED RULE.
FINAL ORDER. CODIFICATION CORRECTION.
OPINION AND ORDER OF THE BOARD
(by 3.
Anderson):
Discussion
On June 16, 1988,
the Board adopted its final Opinion and
Order
in this matter,
which adopted Water Well Setback Exception
Procedures numbered as Sections 106.501—106.505.
Today,
in
Docket R82—l(Docket B), Particulate Emission Limitations,
the
Board has adopted Air Adjusted Standard Procedures which were
submitted at second notice to
the Joint Committee on
Administrative Rules
(JCAR) numbered
as Section 106.501—106.507;
once rules are submitted
to JCAR,
the Administrative Procedure
Act
(APA) prohibits amendments which are not made at JCAR’s
suggestion.
As this R88—10 proceeding
is exempt
from the
requirements
of the APA,
the most administratively efficient and
convenient manner of correcting
the dual numbering problem
is by
amending the numbers
in this proceeding from the 106.500 series
to the 106.600 series.
Accordingly,
the Board on its own motion reconsiders its
June 16,
1988 Opinion and Order solely for the purpose of making
corrections
to the section numbers and references thereto.
To
avoid any confusion to affected persons, and
for ease
in citation
in the future,
the corrected Opinion and Order are set out in
their entirety
below.
Corrected Text
This rulemaking implements 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
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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
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
for
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
6b 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.
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On March
24,
1988,
the Board,
in proposing the rules,
ordered that they be published
in the Illinois Register
and
established
a 30 day public comment period.
The proposal was
published on April
15,
1988.
Only one public comment was
received, from the Illinois Environmental Protection Agency
(Agency).
Format adjustments have been made in response
to
comments of the Administrative Code Unit
of
the Secretary of
State’s office.
Prior
to discussing the comment, the Board notes
for clarity
that the Board has renumbered
the rules adopted
today, proposed
as Section 106.501—106.507,
to Sections 106.601—106.605.
The
following
is
a summary of the Board’s action:
Proposed
Adopted
Section 106.501
Renumbered to Section 106.601
Section 106.502
Deleted
Section 106.503
Deleted
Section 106.504
Renumbered
to Section 106.502
Section 106.505
Renumbered to Section 106.503
Section 106.506
Renumbered
to Section 106.504
Section 106.507
Renumbered
to Section 106.505
In referencing Agency comments,
the Board will
refer to the
rule numbers as proposed and as actually used
in the Agency’s
comments.
The Agency objected
to certain provisions,
namely:
1)
The requirement to file an Agency response
to each
setback petition,
rather than leaving to the Agency the right
to
determine whether
to comment or intervene.
2)
The procedural format establishing
the Agency as
a
voluntary co—petitioner; the Agency does not ever intend
to be
a
co—petitioner.
Thus the Agency requested deletion of all co—
petitioner language
(proposed Sec. 106.502, 106.503 and
l06.504(b)(1)).
It requested, however, retention of the language
in 106.502(b)
as proposed, which authorizes
the Agency
to require
background information from the petitioner.
On the other hand
the Agency requested deletion
of the language providing that
the
petitioner may request assistance from the Agency.
3)
The Agency also requested deletion of Section 106.505 as
proposed, which provided for Agency response to the petition
(and
petitioner reply) when the Agency has not joined as co—
petitioner.
The Agency bases
its request on the fact that the variance
language in Section 37(a)
of the Act requiring that the Agency
investigate each petition and make a recommendation “is
90—693
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conspicuously absent from Section 14.2(c)”
(Agency Comments,
p.
2).
The Agency asserted that
it was the principal architect of
the Groundwater Protection Act and intended that such language
not follow that aspect of the variance procedural process.
The Board notes the following:
1.
Section
26 of the Act grants the Board general authority
to adopt
“such procedural rules
as may be necessary to accomplish
the purposes
of this Act.”
A review of the Board’s procedural
rules show many instances where the Board has provided detailed
procedural steps beyond those expressed
in the statute.
2.
The Board does not understand the Agency’s focus on the
variance process,
to the exclusion of
all others,
in asserting
the
intent of the 14.2(c) exception procedure.
Section 14.2(c)
does not “track”
the variance procedural process in Section
37(a).
The Board notes that the “arbitrary or unreasonable
hardship” language
in both Section 37(a),
variances,
as well
as
in Section 31(c), enforcement,
is different from the “arbitrary
and unreasonable” language
in Section 14.2(c).
3.
Section 14.2(c) uses
the term “exception procedure”.
The only place where this term has been heretofore utilized
is
in
the combined sewer overflow Exception Procedure
(35 Ill. Adm.
Code Subpart D, Section 306.360
—
306.374).
This latter
procedure, which utilized the Board’s Title VII powers, including
Section 26, was supported by the Agency,
and has been in force
for
some time.
The Board rejects
the Agency’s inference that the statutory
language
in Section 14.2, which
includes no procedural
prohibitions whatsoever,
is nevertheless
to be construed as
superseding
the Board’s Section 26 authority (see also Sec.
1(b))
to establish such additional procedural
rules as may be necessary
to accomplish the purpose
of the Act.
The Board also points out
that,
in Section 14.2,
the Agency has major involvement
in the
setback adjustment process
(see esp.
14.2(b)).
The Board also questions how the Agency can argue on the one
hand that the Board cannot require the Agency
to provide
responses to or assist the petitioner
and yet, on the other hand
assert that the Board can require
the petitioner
to provide
background information
to the Agency, when the latter requirement
is not discussed
in the statute either.
In any event,
the Board believes that the Agency’s active
participation
is a necessary element
in these proceedings.
This
is reflected
in renumbered Section 106.603(a).
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—5—
The fundamental benefit
to the Agency of the co—petitioner
format
is that
it gives
an
incentive to the petitioner
to provide
up—front information
to the Agency.
The benefit to all concerned
is that the process allows for
the gathering and exchange
of
information, the airing of issues
in a timely and efficient
manner,
and the development
of
a record sufficient
for the Board
to make a reasoned decision.
Specifically, the format was
established
to efficiently use the Agency’s resources by
eliciting information for the Agency early—on.
Nevertheless, since the Agency has stated that it will never
exercise its discretion
to be a co—petitioner,
it makes little
sense for
the Board
to provide for that format.
Therefore,
as
explained above,
the earlier proposed Sections 106.502 and
106.503 are deleted
in their entirety and the rest of the
sections are renumbered and edited accordingly.
The Board has
also provided for
a response by any owner required
to be noticed
under 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
to these rules.
ORDER
The Board directs
that the following procedural rule be
filed with the Secretary of State
and be published in the
Illinois Register.
PART 106
GENERAL PROVISIONS
SUBPART
F:
WATER WELL SETBACK EXCEPTION PROCEDURES
Section 106.601
Scope and Applicability
This Subpart applies
to the provision for exception contained in
Section 14.2(c) of the Act.
Section 106.602
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 or
an
authorized representative, outlining the scope of
the evaluation, the nature
of,
the reasons for
and
90—695
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the basis of
the exception, consistent with the
level
of justification contained in Section 14.2(c)
of the Act.
2)
The nature of the petitioner’s operations and
control equipment;
and
3)
Any additional
information which maybe
required in
Section 14.2(c) of the Act.
C)
In accordance with 35
Ill. Adm. Code 103.123,
the
petition shall contain proof
of service on owners
required
to be notified and provided with a copy of the
petition as required by Section 14.2(c).
Section 106.603
Response and Reply
a)
Within
21 days after the filing
of
a petition,
the
Agency and any owner required
to be notified under
Section 14.2(c) shall file with the Board
a response
to
the petition.
The response shall include comments
concerning potential Board action on the petition.
b)
The petitioner may file a
reply within
14 days after the
filing of any response.
Section 106.604
Notice and Conduct of Hearing
a)
The Board will hold at least one public hearing prior
to
granting
an exception.
b)
The hearing officer will schedule the hearing.
The
Clerk will give notice
of hearing
in accordance with 35
Ill. Adm. Code 102.122.
c)
The proceedings will be
in accordance with 35 Ill. Adm.
Code 102.160 through 102.164.
Section 106.605
Opinions and Orders
a)
The Board will adopt an Order and 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
90—696
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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 N.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the ~bove Opinion and Order was
adopted on the 36tZ~ day
of
______________,
1988,
by a vote
of
________.
I
5
lution Control Board
90—697