ILLINOIS POLLUTION CONTROL BOARD

September 27, 1990

IN THE MATTER OF:

GROUNDWATER QUALITY STANDARDS

)

R89-l4

(35 ILL. ADM.

CODE

620)

)

(Rulemaking)

CONCURRING OPINION

(by B.

Forcade):

I respectfully concur with today’s action.

I agree with

most of the concepts articulated in the propo~~l. Howev

,

I

believe that in certain respects the proposal should ha~.

been

made more protective of groundwater.

Therefore,

I conc

One of the central conflicts of this proceeding ha

een the

area of non—degradation.

The Illinois Environmental Pr

~tion

Agency

(“Agency”) had submitted regulatory language for

5

Ill.

Adm.

Code 620.401, that precluded “use” degradation,

i.~

it

would only preclude that amount of contamination which

~.

uld

impair the use classification of a groundwater.

For exar~ple, the

Agency’s proposed limit for Xylenes

is 10.0 mg/i

for Class

I

groundwater.

Under the Agency’s approach,

a facility located

above

a Xylene—free body of groundwater could contaminate that

groundwater from its present concentration of 0.0 mg/i

of

Xylene

up to 9.9 mg/l of Xylene without running afoul

of any regulatory

environmental protection

laws.

In response to this

issue, the McHenry County Defenders,

Citizens for a Better Environment and the Illinois chaptE:r of the

Sierra Club

(collectively,

“the Defenders”),

submitted rEgulatory

language at Sections 620.301—303, that predluded “numerical”

degradation,

i.e.,

it precluded contamination that would cause

any numerical increase of the contaminant levels

in groundwater.

In the Defenders’

proposal,

a facility located above

a Xylene—

free body of groundwater would be

in violation of regulatory

provisions

if

it caused the concentration to increase from 0.0

mg/l to 0.1 mg/l

of Xylene.

The majority today selected first notice language

t1.at does

not clearly choose one approach over the other.

The language of

the majority states as follows,

at Section 620.305:

Groundwaters whose existing quality is better

than

the

water

quality

standards

of

this

Subpart

at

the

effective

date

of

this

Part

shall

be maintained

at

their

existing

high

quality.

Such waters shall not be lowered

in

quality unless and until

it

is affirmatively

demonstrated

that

such

change

will

not

interfere

with

or

become

injurious

to

any

115—237

---

2

appropriate

beneficial

uses

made

of,

or

presently

possible

in,

such waters

and

that

such

change

is

justifiable

as

a

result

of

necessary economic or social development.

The above quoted language seems to imply that something more than

use degradation

is precluded, yet the majority does not

specifically adopt language that precludes numerical degradation.

I simply do not know what “quality” degradation includes.

My

concern

is whether an increase in Xylene concentration from 0.0

mg/I to 0.1 mg/l would be considered a degradation of quality.

Further complicating the issue is page

5 of the majority Opinion,

which states:

If one accepts, as the Board does

(see below),

that all groundwaters ~

use degradation....

This seems to imply that the majority adopts use degradation as

the standard.

In a similar manner,

Section 620.305 does not state who

should make downgrading decisions or how they should be made.

It

is unclear whether the affirmative demonstration would be made to

the Agency, who gets notice,

and what the standards are.

I support the Defenders’ proposal of precluding any

numerical degradation

(but

I would include a provision for

statistical significance), except as provided by Board determined

adjusted standard procedures.

The Board has already adopted

prevention of numerical degradation as the appropriate concept as

it applies to non-hazardous waste landfills at 35

Ill. Adm.

Code

811.320.

For hazardous waste facilities, the standard of 35

Iii.

Adm.

Code 724.192—194 precludes numerical degradation except for

14 specified contaminants.

My second area of concern pertains to Section 620.501.

This

section determines who will be subject to the investigation and

preventive management provisions

in Subpart E of the regulatory

proposal.

I disagree that these provisions should apply to so

few facilities

(new facilities and,

in the future,

a few existing

facilities).

Generally speaking,

those who are subject to Subpart E must

conduct sampling and analysis procedures whenever contaminated

groundwater

is detected.

Section 620.501 exempts existing

facilities

from these requirements unless they are located

in

a

setback zone

(no setback zones have yet been defined).

However,

under the proposal,

if a public water supply drawing from a

shallow well were to detect contamination, then only new

facilities

in the area would be required to monitor to determine

if they caused the contamination.

Presently,

aiy existing

115—238

---

3

facility could only be required to conduct such sampling and

analysis as a result of a formal enforcement action.

Therefore,

existing facilities that contaminate groundwater would not be

identified as the source of the contamination, nor would they be

required to engage in any remedial action absent formal

enforcement.

I find this particularly troubling since the statutory

language creates no exemption for existing sources.

The relevant

statutory language for this Subpart,

Ill. Rev.

Stat.,

oh.

111

1/2,

para.

7458

(b) (4), directs the Board to promulgate

regulations, considering in particular:

application of

nondegradation provisions

for

appropriate

groundwaters,

including

notification

limits

to

trigger~ preventive~

response activities.

I see nothing

in that statutory language to imply that

nondegradation provisions and preventive response activities

should be limited to new facilities.

I would agree with the

position taken by the Defenders and the Chemical Industry Council

of Illinois

(PC #3),

that preventive management procedures should

apply to all regulated facilities, new and existing.

My third area of concern relates to intertwining of

groundwater standards and the groundwater classification scheme.

It also involves the interrelationship

of this regulatory

proposal and the proposed regulation of new and existing

facilities within set—back zones and regulated recharge areas

(R89-5;

First Notice;August

31,

1989).

My concern

is that when

these correlated provisions are evaluated,

there is far too

little in the way of prevention of groundwater contamination.

This may be best articulated by a hypothetical example.

Assume for a moment that there

is an area with generally

pristine groundwater and that such groundwater is

in existing use

as a public water supply and has reasonable demand for present

and future consumption.

Assume further that the area has a

reasonably heavy population of existing potential primary and

secondary sources as those terms are defined in the Act.

As a

last factor,

assume that the groundwater had been historically

contaminated with just one contaminant to a level above the water

quality standard

(this could

inclucie a detectable level of a

carcinogen).

Because this hypothetical groundwater does not meet

the criteria for protection as a Class

I aquifer

(even though it

is presently used as

a public water supply), the general resource

groundwater quality standards of Section 620.320 apply; these are

generally five times the potable resource groundwater standards.

Because the proposed regulations

(R89-5; August 31,

1989; Section

615.201) only covers six categories of existing facilities

in

regulated recharge areas and set—back zones,

and then only

115—239

---

4

requires these facilities to comply with numerical water quality

standards

(Section 615.203(a)),

these six categories of existing

facilities will be allowed to contaminate the presently pristine

water up to five times the generally acceptable potable water

standards for all contaminants before any violation would occur

or any remediation would be required.

Because all other existing

facilities inside these

zones,

as well as all existing facilities

outside of regulated recharge areas or set—back zones,

are not

required to monitor groundwater, any contamination they cause

would likely go undetected.

Taken as

a whole this hypothetical situation is not

unlikely.

How~per, the s~~enariodoes not seem consistent with

the legislative declarati

n to “restore,

protect and enhance the

groundwaters of the stat

.“

I would prefer:

(1)

~ require that all groundwater with

less than 10,000 mg/l

of

~otal dissolved solids and greater than

150 gallons per day yield be classified as a potential potable

source

(Class

I)

unless

i

is affirmatively demonstrated to the

Board as incapable of suc:~use,

(2)

to require that all new and

existing regulated sources above Class

I groundwater be held to

the no numerical degradation standard,

and

(3) to require that

upon any detection of statistically significant increases in

contamination,

all new and existing sources must comply with the

Preventive Management Procedures and Corrective Action found in

Subpart

E.

I also have some concerns regarding the sampling and

analysis provisions.

Only certain types of wells can be used,

and only certain types of sampling procedures and reporting

requirements are acceptabLe.

I find these requirements overly

restrictive,

since if these requirements are not met it would

appear that no groundwater quality violation can be shown and no

public health advisory can be issued.

For example, Section 620.420(b) (4) requires chain of custody

control over groundwater nonitoring samples.

I doubt that the

majority of public water supplies in Illinois keep chain of

custody control over their samples.

Such things as chain of

custody are traditionally reserved for evidence preservation in

criminal law.

Even in the criminal law setting, whether chain of

custody has been established goes to the weigh.t of the evidence,

not its admissibility.

See

23 C.J.S.

Criminal Law, Section 846

(b).

Here the requirements for consideration

in an

administrative civil matter seem more restrictive than for a

criminal trial.

If historical data and analysis was not

conducted according to these requirements,

it might be argued

that such data is not valid to show groundwater quality changes.

I would relax these rules to allow consideration of all

information,

with such factors going only to the weight to be

given to the information.

115—249

---

5

Board Member

I, Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereb

certify that the a)~oveConcurring Opinion was filed

on the

/~-~

day of

__________________

,

1990.

/

,/)j

~

Dorothy

M.

/E~iflfl,

Cl~rk

Illinois ~ô~,tlutionControl Board

Bill

S.

Forcade

115—241