Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
100 W
. Randolph, Suite 11-500
Chicago, Illinois 60601
Matt Dunn
Environmental Bureau Chief
Office of the Attorney General
James R . Thompson Center
100 W
. Randolph, 12"' Floor
Chicago, Illinois 60601
Attached Service List
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF :
STANDARDS AND REQUIREMENTS
FOR POTABLE WATER WELL
SURVEYS AND FOR COMMUNITY
RELATIONS ACTIVITIES PERFORMED
IN CONJUNCTION WITH AGENCY
NOTICES OF THREATS FROM
CONTAMINATION (35 ILL . ADM . CODE
1505)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Illinois
Pollution Control Board the Illinois Environmental Protection Agency's Testimony of Scott O . Phillips,
Testimony of Gary P . King, Testimony of Kurt D
. Neibergall, and Agency's Errata Sheet No . 2, a copy of
each of which is herewith served upon you .
ILLINOIS ENVIRONMENTA PROTECTION AGENCY
By :
Mark ig
Assistant Counsel
Division of Legal Counsel
DATE : May 8, 2006
1021 North Grand Avenue East
P .O . Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING SUBMITTED ON RECYCLED PAPER
NOTICE
Bill Richardson
General Counsel
Illinois Dept . of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W . Randolph, Suite 11-500
Chicago, Illinois 60601
R06-023
(Rulemaking - Land)
RECEIVED
CLERK'S
OFFICE
MAY -
9 2006
Pollution
STATE OFControl
ILLINOIS
Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR$
CLERK'S
E C E
I
OFFICE
V E D
IN THE MATTER OF
:
)
STANDARDS AND REQUIREMENTS
FOR POTABLE WATER WELL
SURVEYS AND FOR COMMUNITY
RELATIONS ACTIVITIES PERFORMED
IN CONJUNCTION WITH AGENCY
NOTICES OF THREATS FROM
CONTAMINATION (35 ILL . ADM . CODE
1505)
MAY -
9 2006
STATE OF ILLINOIS
R06-lfl9llution
p
l9llution Control Board
(Rulemaking - Land)
AGENCY'S ERRATA SHEET NO . 2
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (Agency)
submits this ERRATA SHEET NO . 2 for the above-titled matter to the Illinois Pollution
Control Board (Board) . The revisions proposed below are to the Board's First Notice
Order issued April 20, 2006 . They are proposed primarily to address questions and
comments received at the March 28, 2006, hearing in Chicago and also to supplement
and clarify the Agency's previous submissions . The Agency will provide testimony in
support of the proposed revisions
. The revisions are as follows :
Contents :
SUBPART C
: STANDARDS AND REQUIREMENTS FOR COMMUNITY
RELATIONS ACTIVITIES
Section
1505 .300
Purpose and Scope
1505 .305
Applicability
1505 .310
Notices and Community Relations Plans for Limited Community Relations
Activities Contact Lists and Fact Sheets
1505 .315
Notices, Fact Sheets and
Community Relations Plans for Expanded
Community Relations Activities
1505
.320
Establishment of Document Repository
1505.325
Submission of
Notices, Contact Lists, Fact Sheets and Community
Relations Plans for Review
1505 .330
Agency Reviews of
Notices, Contact Lists, Fact Sheets and Community
Relations Plans
1
1505 .335
Implementation of Community Relations Plans and Distribution of
Notices
and Fact Sheets ;
Records Retention
1505 .340
Compliance
Section 1505 .100 :
The purpose of this Part is to set forth in accordance with Section 25d-7 of the Act [415
ILCS 5/25d-7] the minimum procedures for conducting potable water supply well
surveys pursuant to applicable Board rules and for the documentation and reporting of the
results of those surveys to the Agency . In addition, the purpose of this Part is to set forth
in accordance with Section 25d-7 of the Act standards and requirements for the
performance of community relations activities when the Agency has authorized a person
the responsible-party to provide the notice pursuant to subsections (a) and (c) of Section
25d-3 of the Act [415 ILCS 5/25d-3(a), 5/25d-3(c)] as part of the Agency-approved
community relations activities . Subsection (a) of Section 25d-3 of the Act requires that
the Agency provide notice under certain specified circumstances while subsection (c) of
Section 25d-3 provides that the Agency may authorize a person responsible
party
who
has implemented community relations activities to provide the notice in place of the
Agency. The standards and requirements in Subpart C of this Part are for community
relations activities performed by those authorized to provide notice in place of the
Agency. This Part establishes the minimum standards and requirements for the
performance of the potable water supply well surveys and the development, review,
implementation and distribution of notices, fact sheets and community relations plans and
the establishment and maintenance of document repositories .
Section 1505 .110 :
"Authorized party" means the person authorized by the Agency under subsection (c) of
Section 25d-3 of the Act [415 ILCS 5/25d-3(c)l and Subpart C of this Part to provide
notice as part of Agency-approved community relations activities in lieu of a notice
required to be given by the Agency .
Section 1505 .115 :
If any provision of this Part is adjudged invalid, or if the application to any person or in
any circumstance is adjudged invalid, such invalidity
must shall not affect the validity of
this Part as a whole or any Subpart, Section, subsection, sentence or clause thereof not
adjudged invalid .
Section 1505 .200:
2
The purpose of this Subpart B is to establish minimum standards and requirements for
performing potable water supply well surveys to ensure that these wells are accurately
identified and located so that impacts and potential impacts to such wells from soil or
groundwater contamination, or both, can be identified . The effects of soil contamination
on groundwater contamination are evaluated as the soil component of the groundwater
ingestion exposure route using modeling as referenced in this Subpart B
. This Subpart B
sets forth the procedures persons subject to this Subpart B
must shall use to perform
potable water supply well surveys and for the documentation of the results
of well
surveys in reports to the Agency
.
Sections 1505 .205(a) and (a)(1) :
a)
Except as provided in subsection (b)
of this Section, this Subpart B applies
to persons performing response actions pursuant to applicable Board rules .
Whenever a response action for soil or groundwater contamination, or
both, is required pursuant to applicable Board rules, the person subject to
those rules must shall
comply with the standards and requirements of this
Subpart B when a well survey is required to determine the existence and
location of potable water supply wells . When determining the existence
and location of these wells, the person also must shall identify and locate
setback zones and regulated recharge areas associated with the wells
.
1)
This Subpart B does not contain an independent requirement to
perform a potable water supply well survey
. If the Board rules
governing the response action or Agency interpretations of those
rules require the performance of a well survey as part of the
response action, this Subpart B sets forth the minimum standards
and requirements that must be satisfied when performing that well
survey and preparing the documentation for submission to the
Agency. In addition, the submission and review of well survey
documentation and appeals of Agency final determinations
concerning well survey procedures and reporting are subject to the
rules governing the response action
.
Sections 1505 .210(a)
and (b) :
a)
When applicable Board rules require a well survey to determine the
existence and location of potable water supply wells, persons subject to
this Subpart B must shall identify all private, semi-private, and non-
community water system wells located at the property where the release
occurred or within 200 feet of the property where the release occurred, all
community water system
("CWS") wells located at the property where the
release occurred or within 2,500 feet of the property where the release
occurred, and all setback zones and regulated recharge areas in which all
or any portion of the property where the release occurred is located .
3
b)
Actions taken to identify the wells and associated protected areas
must
shall include, but are not be limited to, the following
:
Section 1505 .210(c):
c)
In addition to identifying potable water supply wells and associated
protected areas pursuant to subsections (a) and (b) of this Section, persons
subject to this Subpart B
must shall expand the area of the potable water
supply well survey if measured or modeled groundwater contamination
extends beyond a boundary of the property where the release occurred in
concentrations exceeding the applicable remediation objectives of 35 Ill
.
Adm. Code 742 .Appendix B
: Table E for the groundwater ingestion
exposure route or the applicable groundwater quality standards at 35 Ill
.
Adm. Code 620 (e.g., Class I, Class III)
. If there is no Table E objective
or Part 620 standard, the objective
must shall
be determined or approved
by the Agency in accordance with 35 Ill
. Adm. Code 620
.Subpart F .
1)
The extent of modeled groundwater contamination
must shall be
determined using the procedures of 35 Ill
. Adm. Code 742 or
another model or methodology approved by the Agency
. When
modeling the extent of groundwater contamination, the modeling
must shall include the impact from soil contamination in
concentrations exceeding the applicable remediation objectives for
the soil component of the groundwater ingestion exposure route
.
2)
At a minimum, the expanded well survey
must shall identify the
following:
A)
All private, semi-private, and non-community water system
wells located within 200 feet, and all community water
system wells located within 2,500 feet, of the measured
or
and modeled extent of groundwater contamination
exceeding the
applicable remediation objectives of
Part 742
or
Part 620 remediation objcctiver for the groundwater
ingestion exposure route
or the applicable Part 620
groundwater quality standards ;
and
B)
All setback zones and regulated recharge areas in which
any portion of the measured or and modeled extent of
groundwater contamination exceeding the
applicable
remediation objectives of Part 742 or Part 620
rcmediation
objectives
for the groundwater ingestion exposure route or
the applicable Part 620 groundwater quality standards
is
located .
4
Section 1505.210(d) :
d)
The Agency may, based on site-specific circumstances or information
collection deficiencies (e.g.,
incomplete, conflicting or imprecise
information, information assembled from unverified sources), require
additional investigation to determine the existence or location of potable
water supply wells, setback zones or regulated recharge areas . The
additional investigation may include, but is -.hall
not be limited to,
physical well surveys (e.g., interviewing property owners, investigating
individual properties for wellheads, distributing door hangers or other
materials requesting information about the existence of potable wells) .
Sections 1505 .210(e) and (e)(2) :
e)
Documentation of a potable water supply well survey conducted in
accordance with this Section must shall include, but is not be limited to,
the following :
2)
The maps showing the well locations, setback zones and regulated
recharge areas pursuant to subsection (e)(1) of this Section must
shall show those areas in relation to the measured or and modeled
extent of groundwater contamination exceeding the applicable
remediation objectives of Part 742 or Part 620 for the groundwater
ingestion exposure route or the applicable Part 620 groundwater
quality standards .
Section 1505 .300(a):
a)
The purpose of this Subpart C is to establish the minimum standards and
requirements for the development and implementation of community
relations activities in accordance with Section 25d-7 of the Act when the
Agency has authorized a person the responsible paft-y
to provide the notice
pursuant to subsections (a) and (c) of Section 25d-3 of the Act as part of
the Agency-approved community relations activities . In addition, it is the
purpose of this Part to ensure that these community relations activities
fully inform communities and individuals in a timely manner about offsite
impacts or potential impacts from soil or groundwater contamination, or
both, and the responses to such impacts . This Subpart C contains
requirements for the content, submission for review, distribution and
implementation of notices, contact lists, fact sheets and community
relations plans, and the establishment and maintenance of document
repositories .
Sections 1505 .305(a) and (b) :
5
a)
Whenever the Agency determines that it must provide notice pursuant to
subsection (a) of Section 25d-3 of the Act, the Agency may authorize a
person the responsible party to provide the notice as part of the Agency-
approved community relations activities developed and implemented in
accordance with this Subpart C
.
b)
Nothing in this Subpart C requires the development and implementation of
community relations activities in accordance with this Subpart unless
:
1)
The Agency notifies the person responsible party
in writing that a
notice must be issued under subsection (a) of Section 25d-3 of the
Act;
2)
As a part of the written notice to the responsible party, the Agency
offers the person responsible party the opportunity to provide the
notice in lieu of the Agency issuing the notice ; and
3)
The person responsible-pay accepts the Agency's offer and
notifies the Agency in writing within seven days of receipt of the
Agency's offer (unless a longer period of time is provided in the
Agency's notice letter) that it intends to provide the notice as part
of the community relations activities developed and implemented in
accordance with Subpart C of this Part in lieu of the Agency
providing the notice .
Section 1505.310(a)
:
Notices and Community Relations Plans for Limited
Community Relations Activities
Contact Lists and Fact
Sheets
Section 1505 .310(b) :
and (c) of Section 25d 3 of the Act
as
comply with community
relations requirements in subsection -(b)
a this Section if:
b)
An authorized party
ithin the limits set forth in subsection
(a) of this Section must shall develop a
notice and a community relations
plan (CRP) consisting of a contact list and
develop and distribute a fact
sheet in accordance with this subsection (b) .
1) Notices issued undersubsection (c) of Section 25d-3 of the Act
and this Part must be distributed in accordance with Section
1505 .335 of this Part to the contact list as derived from subsection
(h)(2)of this Section andmap
contain the following information :
6
24)
A) The
name and address of the site or facility where the
release occurred or is suspected to have occurred ;
B) The
identification of the contaminant released or suspected
to have been released;
C) Information
as to whether the contaminant was released or
suspected to have been released into the air, land, or
water;
D) A brief description of the potential adverse health effects
posed by the contaminant ;
E) A recommendation that water systems with wells impacted
or potentially impacted by the contamination be
appropriately tested; and
F) The
name, business address, and phone number ofpersons
at the Agency from whom additional information about the
release or suspected release can be obtained. [415 ILCS
5/25d-3(c)]
The authorized party person must shall prepare a contact list
including, but not limited to, the following affected, potentially
affected or interested persons, as applicable
:
A)
Owners of properties served by private, semi-private or
non-community water system wells that have been or may
be impacted by groundwater contamination from the
release ;
B)
Owners of offsite properties with soil contamination posing
a threat of exposure above the appropriate Tier I
remediation objectives for the current use(s) ;
C)
Occupants of the properties identified in subsections
(b)W(1-)(A) and (b)W(1)(B)
of this Section to the extent
reasonably practicable . The contact list must shall include
the methods by which the responsible party has attempted
to identify the occupants ;
D)
Owners of properties without potable water supply wells
but with groundwater that has been or may be impacted by
groundwater contamination from the release
; and
7
Section 1505.310(e) and (d) :
E)
Officials of each unit of government serving the affected
properties, including state and federal legislators, county
board chairs and county clerks, township supervisors, and
mayor or village presidents and city or village clerks .
Officials of specialized districts (e .g., school, drainage,
park districts) may be excluded from the contact list unless
required pursuant to subsections (b)(J2 (-)(A) through
(b)Qft)(D) of this Section .
32)
The authorized party
persen must shall
develop a fact sheet for the
release and response action . The fact sheet must shall
be
distributed in accordance with Section 1505 .335 of this Part to the
contact list as derived from subsection (b)Q(1) of this Section .
The fact sheet must shall be written clearly and concisely in non-
technical, non-legal terminology . The fact sheet and any required
updates, must shall contain, at a minimum, the following
information to the extent available :
c)
For information that is not available when a fact sheet is prepared pursuant
to subsection
(b)W(2)
of this Section, the submission of the fact sheet to
the Agency for review must shall be accompanied by an explanation of
why the information is unavailable at the time of the submission of the
fact sheet and an estimate of when the missing information will be
supplied in a revised fact sheet .
d)
Fact sheets and contact lists developed in accordance with this Section
must shall be updated and redistributed whenever new information is
obtained or developed or circumstances change so that there is a material
change to the information required or provided in the fact sheet (e .g.,
completion of site investigation and characterization of the nature and
extent of contaminants, higher concentrations of contaminants than
previously detected, evidence of additional contaminants of concern or of
a larger area affected by contamination, approval of plans or reports,
completion of response action activities) .
Section 1505 .315(a): Notices, Fact Sheets, and Community Relations Plans Plan for
Expanded Community Relations Activities
a)
Authorized parties must Persons authorized by the Agency to provide
relations activities shall comply with the community relations
requirements in su bsection (b) of this Section if:
Section 1505 .315(b):
8
b) ,
An authorized party The p erson authorized to provide notice as part of
exceeding the limits set forth in
subsection (a) of this Section
must -shall develop and impp lleemeni a notice
and a community relations plan and fact sheet in accordance with this
subsection (b) . Section 1505-Appendix A of this Part contains the outline
of a model community relations plan that may be appropriate for a site
subject to this Section .
l) Notices
must be developed in accordance with subsection (b)(1) of
Section 1505 .310 of this Part and distributed in accordance with
Section 1505 .335 of this Part to the contact list as derived from
subsection(b)(2)(D)of this Section .
21-)
The CRP must be implemented in accordance with Section
1505.335
of this Part and must shall include, but is not be limited
to, the following elements to the extent related to the contaminants
being addressed in the response action :
A)
A description of the site or
facility and details of the release
and any related soil or groundwater contamination ;
B)
A list of community issues and concerns collected from
affected, potentially affected, and interested parties
identified though the process outlined in subsection
(b)(Q9)(D) of this Section ;
C)
A community relations program including elements of
outreach, methods for maintaining a dialogue with affected,
potentially affected, and interested parties, and a schedule
for activities and objectives ; and
D) The process for identifying and updating the contact list,
which must shall consist of affected, potentially affected,
and interested parties including, but not limited to :
i)
Owners of properties served by private, semi-private
or non-community water systems that have been or
may be impacted by groundwater contamination
from the release;
ii)
Owners and operators of community water system
wells that have been or may be impacted by
groundwater contamination from the release ;
9
iii)
Owners of properties without potable water supply
wells but with groundwater that has been or may be
impacted by groundwater contamination from the
release;
iv)
Owners of offsite properties with soil contamination
posing a threat of exposure above the appropriate
Tier 1 remediation objectives for the current use(s) ;
v)
Occupants of the properties identified in subsections
(b)W(1)(D)(i) and (b)W(1-)(D)(iv) of this Section
to the extent reasonably practicable . The
community relations plan must shall include the
methods by which the responsible party will attempt
to identify the occupants ;
vi)
Local, state and federal officials whose jurisdiction
covers the affected and potentially affected
properties including : mayor or village president, city
or village clerk, township supervisors, county board
chair and county clerk, city and county health
department administrator ; state and federal
legislators ; and
vii)
Citizens, identified groups, organizations or
businesses within a minimum of 1000 feet from the
site where the release occurred that may have an
interest in learning about affected and potentially
affected properties (e .g., public and private school
administrator(s), Parent-Teacher Association (PTA)
leader(s); day care center, senior center and nursing
home management ; neighborhood or homeowner
association or other community leader(s) as
identified ; hospital and clinic management
; and
recognized environmental or citizen advisory
groups). If approved by the Agency, the initial
minimum distance of 1000 feet may be expanded or
contracted as the CRP and contact list are updated
based on new information developed during the
response action .
32)
Along with the development of a
notice and CRP in accordance
with subsections suhseetien (b)(1) and(b)(2)
of this Section, the
authorized party personssubject to this subsection (b) must shall
develop and distribute a fact sheet for the release and response
action . The fact sheet must shall be distributed in accordance with
10
Section 1505 .315(c) and (d) :
c)
For information that is not available when a fact sheet is prepared pursuant
to subsection (b)(3)( of this Section, the submission of the fact sheet to
the Agency for review
must shall be accompanied by an explanation of
why the information is unavailable at the time of the submission of the
fact sheet and an estimate of when the missing information will be
supplied in a revised fact sheet .
d)
Updates:
1)
Fact sheets developed in accordance with subsection (b)(2) of this
Section must shall be updated and redistributed whenever new
information is obtained or developed or circumstances change so
that there is a material change to the information required or
provided in the fact sheet (e.g.,
completion of site investigation and
characterization of the nature and extent of contaminants, higher
concentrations of contaminants than previously detected, evidence
of additional contaminants of concern or of a larger area affected
by contamination, approval of plans or reports, completion of
response action activities) .
2)
The CRP including, but not limited to, the contact list must shall be
reviewed on a regular basis and updated, as necessary, to ensure
that timely and accurate information is provided to affected,
potentially affected and interested parties and communities about
releases of contaminants with actual or potential impacts to offsite
wells, offsite property uses, or both . A current version of the
publicly available CRP must shall be kept in the document
repository described in Section 1505
.320.
Section 1505 .320:
Authorized parties
persons developing a CRP pursuant to Section 1505 .315 of this Part
also must
shall establish a document repository for the purpose of displaying documents
and providing copies of those documents. The document repository must shall be
Section 1505 .335 of this Part to the contact list as derived from
i-H
subsection (b)Q(4-)(D) of this Section . The fact sheet must shall
be written clearly and concisely in non-technical, non-legal
terminology . If a significant portion of the population surrounding
the site where the release occurred is non-English speaking, the
fact sheet must shall be produced and distributed in both English
and the other predominant language. The fact sheet and any
required updates must shall contain, at a minimum, the following
information to the extent available :
11
established at a World Wide Web site . unleef the person authorized to provide the notice
repository at
a
physical location
. A document repository at a physical location also must
be established if a request for a repository at a physical location is made to the
responsible party or to the Agency ._ If an individual requests a document repository at a
physical location, the authorized party
may
satisfy the request by providing a complete set of copies of the documents to the party
making the request . If two or more individuals, one or more groups of individuals
(e.g.,
citizen or neighborhood groups, civic organizations), or a local government official or
administrator requests a document repository at a physical location, the authorized party
personauthorized to provide the notice must
shall
establish and maintain the document
repository at both a World Wide Web site and at a physical location as described under
subsection (c) of this Section .
Section 1505 .320(a) :
a)
The document repository must chall include the notice, community
relations plan, all public notices (e .g.,
proof of publication for newspaper
or other published notices, letters, door hangers, or other forms of public
notification), all fact sheets, all applications, plans and reports submitted
to the Agency for review and approval and subsequent Agency comment
packages, and all final determinations by the Agency, such as a No Further
Remediation Letter, permit modification, or other project completion
documentation .
I)
The authorized party
person must shall update the repository
promptly and continuously as notices, fact sheets, plans, reports,
comment packages and Agency decisions are generated throughout
the process .
2)
The documents must chall
be created, organized and indexed so
that affected, potentially affected, or interested persons can
identify, locate and download documents of interest .
3)
The repository must shall
include the business, site or facility
representative's e-mail, postal address and telephone number
where inquiries can be directed and persons can request copies of
repository documents and other site-related documents by mail
.
Sections 1505 .320(c) and (d):
Section 1505 .320(b)(3) (new) :
b)
3) System capacity must be sufficient to support the viewing and
downloading of the documents in the repository and to
accommodate the anticipated number of viewers
.
12
c)
Repositories at physical locations :
1)
Repositories established at physical locations must shall be
established no later than ten business days after receipt of a request
for a repository at a physical location or receipt of the Agency's
notification that a request has been made to the Agency, whichever
is earlier .
2)
Repositories established at a physical location must shall be at a
public location (e.g., public library, city hall) and open to the
public at times convenient to affected, potentially affected, or
interested persons .
d)
Information deemed trade secrets or non-disclosable in accordance with
Board procedures at 35 Ill . Adm. Code 130 or Agency procedures at 2 111 .
Adm. Code 1828 may be redacted or excluded from the repository
consistent with the requirement for providing the public all documents that
have not been deemed confidential. Information to be added to the
document repository also must shall be screened to ensure that personal
information identifying affected, potentially affected, or interested persons
or their exact property locations is are not disclosed .
Section 1505 .325 :
Submission of Notices, Contact Lists, Fact Sheets and Community
Relations Plans for Review
a)
Except as provided in subsection (b) of this Section or subsection (d) of
Section 1505 .330 of this Part, authorized parties personsaccepting the
Agency's offer to provide notice p ursuant to subsections (a) and (c) of
Section 25d 3 of the Act as part of community relations activities must
shall, within 30 days of the date of their acceptance :
1)
Submit to the Agency a notice and community relations plan fact
satisfying the requirements of subsection (b)
of Section 1505 .310 of this Part or a notice, CRP, fact sheet and
contact list satisfying the requirements of subsection (b) of Section
1505 .315 of this Part; and
2)
Establish a web site document repository if required in accordance
with Section 1505 .320 of this Part .
b)
Updates of CRPs, fact sheets or both and updates of contact lists prepared
pursuant to subsection (d) of Section 1505 .310 or subsection (d) of Section
1505 .315 of this Part also must shall be submitted for Agency review in
accordance with subsection (a) of this Section except that the updates must
shall be submitted to the Agency within ten days of preparing the revised
13
CRP or developing or obtaining new information that would materially
change the information required or provided in the fact sheet .
c)
If authorized by the Agency, CRPs , notices, contact lists or fact sheets
maybe filed in specified electronic formats .
Section 1505 .330
:
Agency Reviews of Notices, Contact Lists, Fact Sheets and
Community Relations Plans
a)
The Agency has shall have 30 days from receipt of a notice, contact list,
fact sheet, CRP, or updates of such documents to conduct a review and
approve or disapprove of the document(s) CRP or fact sheet or approve of
the document(s) CRP or fact sheet with conditions or modifications . All
reviews must shall be based on the standards for review set forth in
subsection (b) of this Section .
1)
The Agency's record of the date of receipt of a notice, contact list,
fact sheet or CRP will shall be deemed conclusive unless a
contrary date is proved by a signed, dated receipt from the Agency
or certified mail or registered mail .
2)
Authorized parties Personssubject to this Subpart C may waive the
time period for review upon a request from the Agency or at the
authorized party's person's discretion
.
b)
When reviewing a notice, contact list, fact sheet or CRP, the Agency
must
shall consider
:
1) Whether the notice complies with the requirements of subsection
(b) of Section 1505
.310 of this Part or subsection (b) of Section
1505 .315 of this Part ;
2})
Whether the CRP contains the elements required by subsection (b)
of Section 1505
.315 of this Part ;
3-2)
Whether the fact sheet contains the elements required by
subsection (b) of Section 1505 .310 of this Part or subsection (b) of
Section 1505 .315 of this Part including, but not limited to, any
explanation of why specified information is unavailable at the time
of the submission of the fact sheet and an estimate of when the
missing information will be supplied in a revised fact sheet ;
43)
Whether the information in the notice, contact list, fact sheet or
and CRP is consistent with the information contained in the
Agency's records and any field observations ; and
14
54)
Whether authorized parties the personssubject
to this Subpart C
have clearly defined :
A)
Persons required to be included in the contact list for
notices and
fact sheets in accordance with subsection (b) of
Section 1505
.310 of this Part or subsection (b) of Section
1505 .315 of this Part
; or
B)
The demographics of nearby populations that may be
affected by or concerned about site activities for purposes
of notification under the CRP including, but not limited to,
residences, businesses, day care centers, schools, nursing
homes, hospitals and clinics .
c)
Upon completion of the review, the Agency must shall
notify the
authorized party ubmitte
in writing whether the notice, contact list, fact
sheet or CRP is
approved, approved with
conditions or modifications, or disapproved
. The notification must shall
be made by certified or registered mail postmarked with a date stamp and
with return receipt requested
. If the Agency disapproves a document fact
-sheet or CRP,
or approves a document fact sheet or CRP with conditions
or modifications, the notification must shall
contain the following
information, as applicable :
1)
An explanation of the specific information or documentation, if
any, that the Agency determines the authorized party
submitter did
not provide or is inconsistent with the information contained in the
Agency's records and any field observations
;
2)
A list of the provisions of this Part that may be violated if the
document fact sheet or CRP
is approved as submitted ;
3)
A statement of the reasons why the provisions cited in subsection
(c)(2) of this Section may be violated if the
document fact sheet or
CRP is approved as submitted
; and
4)
An explanation of the reasons for conditions or modifications if
conditions or modifications are required
.
d)
If the Agency disapproves of a
notice, contact list,
fact sheet or CRP or
approves of a
notice, contact list,
fact sheet or CRP with conditions or
modifications, the
authorized party suubmitter
must shall submit a revised
version of the document(s)
fact sheet, CRP, or both
to the Agency within
ten days of receiving the Agency's denial
. If the revised notice, contact
h
fact sheet, or CRP is, or both
are not received by the Agency within
ten days, or if a revised
document(s) is fact sheet or CRP
are not approved
15
e)
The Agency will may, to the extent consistent with review deadlines,
provide the authorized party sebmitter with a reasonable opportunity to
correct deficiencies prior to sending a disapproval of a notice, contact list,
fact sheet or CRP or an approval with conditions or modifications
.
However, the correction of such deficiencies by the submission of
additional information may, in the sole discretion of the Agency, restart
the time for review .
If the Agency does not issue its final determination on the
notice, contact
list fact sheet, CRP, or updates of such documents within 30 days of the
receipt of the document, the document must -,hall be deemed approved as
submitted .
1)
on the second Agency review, the Agency, in addition to any other
remedies that may be available, may provide notice to the public and seek
cost recovery from the authorized party submitter pursuant to Title VI-D
of the Act, pursue an enforcement action against the authorized party
steer for failure to develop and implement an Agency-approved
notice, contact list,
fact sheet or CRP, or both . In addition to any other
defenses that may be available to the authorized party submitter, it is shall
be a defense to an Agency action to obtain cost recovery for notification or
for an alleged violation of the requirement to develop and implement an
Agency-approved notice, contact list, fact sheet or CRP that the
document(s) fact sheet or CRP submitted to the Agency and rejected
satisfies the requirements for such documents as set forth in Sections
1505 .310 and 1505 .315 of this Part . This provision does not limit the use
of this defense in other circumstances where appropriate .
Section 1505 .335 : Implementation of Community Relations Plans and Distribution of
Notices and Fact Sheets;
Records
Retention
a)
Implementation of the CRP or distribution of a notice or
fact sheet must
shall begin within five days of receipt of the Agency's approval of the
document(s) CRP or
the fact sheet or within ten days of the date the
document(s) is deemed approved pursuant to subsection (f) of Section
1505 .330 of this Part .
b) Compliance monitoring :
W)
Authorized parties Persons authorized by the Agency
to provide notice
16
IA)
Provide to the Agency copies of all public notices (including, but
not limited to, proof of publication for newspaper or other
published notices), news releases, letters, door hangers, or other
forms of public notification ; and
213) Inform the Agency in writing two weeks in advance of plans to
hold public meetings or press conferences about site activities or
developments.
2) The Agency
may monitor the implementation of approved CRPs,
maintenance of document repositories. Steps taken by the Agency
to monitor
these activities may include, but shall not be limited to :
affected, potentially affected and
interested persons concern ing the type, completeness and
Cross checking documentat ion received
and generated by
D) Making site visits
to verify descriptions of site conditions
c)
Authorized parties must The personauthorized by the Agency to provide
notice pursuant to subsections (a) and (c) of Section 25d 3 of the Act as
retain records and documents
demonstrating compliance with the requirements of this Subpart C for at
least one year after the recording of the NFR Letter or the issuance of
other project completion documentation by the Agency (e.g.,
permit
modification, closure letter, "4(y) letter" [415 ILCS 5/4(y)]). The
retention period for the records and documents is extended automatically
during the course of any disputes or unresolved enforcement actions
regarding the community relations activities or as requested in writing by
the Agency . Records may be preserved and presented in an electronic
format.
Section 1505 .340:
An authorized party must not No personauthorized by the Agency to provide notice
pursuant to subsections (a) and (c) of Section 25d 3 of the Act as part of commun ity
relations activities shall fail to comply with the requirements of this Subpart C or the
provisions of community relations activities approved by the Agency .
17
Section 1505 .Appendix A :
This Appendix A lists the four key elements of a community relations plan
for an
authorized party proceeding under Section 1505 .315 of this Part
and several factors that
might should be included with each element in a community relations plan prepared for
the a-eemplex site where the release occurred . Unless otherwise required by rule, all the
factors listed with each element may not be necessary for each site developing and
implementing a community relations plan pursuant to Section 1505 .315 of this Part,
1505, but each factor should be considered when developing the arty community relations
plan.
Site/Facility Description : The CRP should provide for the development a brief
overview of the site where the release occurred including, but not limited to, a
description of the business, site or facility, its current operations, previous land
uses and previous remedial activities ; the nature and extent of known
contamination ; and the known or potential threat to public health and the
environment . The overview should include a map to an appropriate scale
detailing the site location and surrounding area and showing roads and streets,
homes and businesses, and geographic and other significant features .
2.
Community Issues and Concerns : The CRP should provide for the development
of a brief summary of the demographics of the area surrounding the site where the
release occurred including, but not limited to, the approximate percentage of non-
English speaking persons among the affected, potentially affected, and interested
parties and their preferred language, key community concerns, and any preferred
methods of communication as learned through research work, interviews and
surveys of a representative sample of affected, potentially affected and interested
parties identified through the process outlined in the fourth element below .
Community Relations Program : The CRP should describe the community
relations program objectives, action plan and schedule to keep affected,
potentially affected and interested parties apprised of conditions at the site,
response actions, and actual or potential public health impacts. This section also
should explain how the public will be notified of mailings or meetings
. The
contact person(s) and contact information for public inquiries should be clearly
defined . Additionally, details about the location of, and access to, the document
repository should be outlined in this section of the CRP .
4 .
Contact List: The CRP should outline the process for identifying and updating a
contact list and developing a contact database of affected, potentially affected,
and interested parties including, but not limited to :
A.*-
Owners and eee*pants of properties served by private, semi-private or
non-community water systems that have been or may be impacted by
groundwater contamination from the release ;
18
B
Owners and operators of community water system wells that have been or
may be impacted by groundwater contamination from the release ;
C.S
Owners of properties without potable water supply wells but with
groundwater that has been or may be impacted by groundwater
contamination from the release;
DA Owners andsto of offsite properties with soil contamination posing
a threat of exposure above the appropriate Tier 1 remediation objectives
for the current use(s) ;
E. Occupants of properties identified in paragraphs A and D to the extent
reasonably practicable
. The community relations plan must include the
methods by which the responsible party will attempt to identify the
occupants ;
FA
Local, state and federal officials whose jurisdiction covers the affected and
potentially affected properties including : mayor or village president, city
or village clerk, township supervisors, county board chair and county
clerk, city and county health department administrator ; state and federal
legislators ; and
GA
Citizens, identified groups, organizations or businesses within a minimum
of 1000 feet from the site where the release occurred that may have an
interest in learning about affected and potentially affected properties (e .g.,
public and private school administrator(s), Parent-Teacher Association
(PTA) leader(s) ; day care center, senior center and nursing home
management
; neighborhood or homeowner association or other
community leader(s) as identified
; hospital and clinic management ; and
recognized environmental or citizen advisory groups) . If approved by the
Agency, the initial minimum distance of 1000 feet may be expanded or
contracted as the CRP and contact list are updated based on new
information developed during the response action .
THIS FILING SUBMITTED ON RECYCLED PAPER
19
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
IN THE MATTER OF :
MAY -
9 2006
)
STATE
OF ILLINOIS
STANDARDS AND REQUIREMENTS
pollution Control Board
FOR POTABLE WATER WELL
)
R06-023
SURVEYS AND FOR COMMUNITY
)
(Rulemaking - Land)
RELATIONS ACTIVITIES PERFORMED
)
IN CONJUNCTION WITH AGENCY
)
NOTICES OF THREATS FROM
)
CONTAMINATION (35 ILL
. ADM . CODE
)
1505)
)
TESTIMONY OF GARY P
. KING ON PROPOSED REVISIONS TO FIRST NOTICE
PROPOSAL
My name is Gary King
. I am the manager of the Division of Remediation
Management within the Bureau of Land (BOL) at the Illinois Environmental Protection
Agency
. In this position I am the senior manager responsible for the Site Remediation
Program (SRP) and Leaking Underground Storage Tank (LUST) Program
. I have had
senior manager responsibility for these programs since the time they were established
.
Today I will testify with regards to revisions to Subpart B well survey procedures that the
Agency is proposing in Errata Sheet No
. 2 in response to comments received at the
March 28`h
hearing in Chicago . Most sites using the well
survey requirements will be in
the Site Remediation or LUST Programs
. BOL and Bureau of Water permitted facilities
performing response actions pursuant to Board rules also will use the survey procedures
of Subpart B .
On pages 56-59 of the transcript for the March 28`h
hearing, the Agency was
asked about the references in Section 1505
.210(c) to Part 620 groundwater quality
standards and the Tier 1 remediation objectives of TACO, 35 Ill
. Adm. Code 742
. On
page 59, the Agency was asked if the references to these standards and objectives are
I
consistent throughout the proposal . The Agency has taken another look at the references
and concluded that the references are correct as proposed
.
In Section 1505 .210(c), the Part 742 remediation objectives and the Part 620
groundwater quality standards are used in conjunction with the measured or modeled
extent of groundwater contamination to help determine the area of the potable water well
survey once it has been concluded that the groundwater contamination has or will migrate
off-site from the property where the release occurred
. Both references are included
because some response actions will be performed under rules that require compliance
with TACO remediation objectives and some will be performed under rules that require
compliance with Part 620 groundwater quality standards
. The use of either should lead to
identification of wells that have been impacted or threatened by contamination
. While
the existing references are correct, some clarifying language has been proposed at
Sections 1505
.2 1 0(c)(2)(A), (c)(2)(B) and (e)(2) .
In Subpart C there are references to Class I groundwater quality standards and
Tier 1 remediation objectives in Sections 1505
.310(a)(1) and (a)(2),
1505 .315(a)(1) and
(a)(2),
and a few other miscellaneous provisions
. In this context, the references track the
language from the statutory triggers on which the notice requirements are based, Sections
25d-3(a)(1) and (a)(2)
of the Act, and are therefore appropriate for Subpart C community
relations requirements . (415 ILCS 5/25d-3(a)(1),
(a)(2))
At pages 60-61 of the transcript, the Agency was asked to confirm the consistency
of the use of the phrases "measured or modeled" and "measured and modeled" in
Sections 1505 .210(c)(2)(A) and
(c)(2)(B) .
In both cases, the phrases have been amended
from "measured and modeled" to "measured or modeled" consistent with the
2
understanding that the Board's convention is that "and" means "both" and "or" means
"either or'both
." This change also has been made at Section 1505
.21 O(e)(2).
In most cases, characterization of groundwater contaminant concentrations will
include both measured and modeled data, and the Agency would expect to see both
.
However, there may be exceptions . For example, in the case of soil contamination with
concentrations exceeding the remediation objectives for the soil component of the
groundwater ingestion exposure route, there may be only modeled data for groundwater
contamination if contaminants have not yet migrated to groundwater
. When determining
the appropriate area of the well survey and reporting the results of the survey, the Agency
expects to see both data sets with measured data showing current impacts and modeled
data showing projected impacts
. For purposes of Part 1505, this information is useful in
judging how quickly notice must be provided if notice is necessary
. However, because
two data sets may not always be available, "measured or modeled" is the correct choice .
This concludes my testimony.
THIS FILING SUBMITTED ON RECYCLED PAPER
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVE
D
MAY -
9 2006
STATE OF ILLINOIS
R06-023Pollution
Control Board
(Rulemaking
-
Land)
IN THE MATTER OF :
)
STANDARDS AND REQUIREMENTS
FOR POTABLE WATER WELL
SURVEYS AND FOR COMMUNITY
RELATIONS ACTIVITIES PERFORMED
IN
CONJUNCTION WITH AGENCY
NOTICES OF THREATS FROM
CONTAMINATION (35 ILL . ADM . CODE
1505)
TESTIMONY OF KURT D
. NEIBERGALL ON PROPOSED REVISIONS TO FIRST
NOTICE PROPOSAL
My name is Kurt D . Neibergall, and I am the Manager of the Office of
Community Relations (OCR), reporting to the Associate Director within the Illinois
Environmental Protection Agency (Illinois EPA) . I received a Bachelor of Science
degree in agricultural engineering from the University of Illinois in 1980 and have
worked for state government for the past 25 years in various capacities in the
environmental field . For the last five years, I have managed a staff of ten coordinators in
the Illinois EPA's Office of Community Relations
. This group works across all Agency
programs and is involved in the conduct of the majority of Agency public participation
activities, facilitating communications among involved Agency staff, other government
organizations, public officials, and the interested public on site-specific and, often,
program outreach matters .
My testimony today concerns revisions the Agency is proposing in Errata Sheet
No . 2 to the First Notice version of 35 111
. Adm
. Code 1505 in response to questions and
comments received at the Chicago hearing on March 28, 2006
. Most of the changes
1
covered in my testimony are found in Subpart C of the proposal, the community relations
provisions .
At pages 62-68 of the March 28`
h
hearing transcript, there are several questions
about whether the Agency's proposal is consistent with Section 25d-3(c) of the Act (415
ILCS 5/25d-3(c)), which provides that a "community relations plan" is necessary if the
Agency is to authorize a party to provide notice in lieu of the Agency . In Sections
1505 .310 and 1505 .315, the Agency originally proposed two levels of community
relations activities, one based on a fact sheet and contact list and one based on a
community relations plan outline developed from the U
. S . EPA's "Community Relations
in Superfund : A Handbook" (EPA/540/R-92/009) (Jan . 1992) and "Superfund
Community Involvement Handbook" (EPA 540-K-01-003) (2002) . The Agency further
proposed that the fact sheet and contact list would provide the basis for community
relations activities at sites with lesser contamination impacts while the community
relations plan outline would provide the basis for community relations activities at sites
with greater contamination impacts. Only the latter was characterized in the proposal as
a "community relations plan ."
To be consistent with the statutory requirements, the Agency has revised Section
1505 .310(b) to reflect that the preparation and distribution of the contact list and fact
sheet also constitute the implementation of a community relations plan . This change
further requires several conforming and clarifying changes throughout the remainder of
the proposal including the deletion of the definition of "community relations plan" in
Section 1505 .110
. That definition describes only the approach required in Section
1505 .315.
2
At pages 68-71 of the March 28
th transcript and again at pages 117-118 (Ms .
Hirner's testimony), concern was expressed that the Agency's proposal did not clearly
establish the notice requirement from Section 25d-3 of the Act and that the contents of
the fact sheets were not entirely consistent with the contents of the notice as set forth in
Sections 25d-3(c)(l)-(6) of the Act
. The Agency has revised Sections 1505 .310(b) and
1505 .315(b) to make clear the notice is separate from the fact sheet and to incorporate the
statutory language for the contents of the notice
. This change also has required several
other conforming and clarifying changes in the proposal, primarily in Subpart C
.
At pages 71-73 of the March 28
th
transcript, the Agency was asked if it might not
be more helpful to the regulated community to include in the Appendix a model
community relations plan for a "typical" site rather than a "complex" site
. The example
chosen for Appendix A is based on the U
.S . EPA guidance documents mentioned above
and has been used as a guide by the Agency in developing its own community relations
plans
. A CRP using all of the listed factors under each of the four elements would be a
very thorough CRP that, if timely implemented in good faith, should lead to full, open
dialogue between the responsible party (revised to "authorized party" in Errata Sheet No .
2) and the interested and affected public under Section 1505
.315 .
However, in response to comments received during outreach and to promote
flexibility for site-specific conditions, the Agency proposed in its Errata Sheet No
. 1 to
move the structure from Section 1505
.315 to Appendix A and clarify that use of this
model is not mandatory
. Having reviewed the model, the Agency continues to believe
that providing the detailed model in Appendix A is appropriate for two reasons
: 1) It
would be difficult to describe the "typical" site and to provide a model that is always
3
appropriate for that site ; and 2) providing a more detailed model, that is in use in
established programs, serves as a menu from which a selection can be made in
consultation with the Agency's community relations coordinators that is appropriate for
each site subject to Section 1505
.315 . In response to the Board inquiry, the Agency has
proposed amendments to Section 1505
.315(b) and in the introductory language to
Appendix A to remove references to "complex" sites and to clarify further that there is
some flexibility when using the model.
At transcript pages 77-81, 104 -05 (Ms
. Dinschel's testimony), and again at 107-
10, there were several questions and comments about whose letterhead should be used for
the notices When the Agency provides a notice, the notice will be on Agency letterhead
and in accordance with the recommendations of the Groundwater Advisory Council
Notice Committee . (See Exh
. 1, Testimony of Richard P
. Cobb at 2-5 and Attachment
III ; Exh
. 3, Testimony of Kurt D
. Neibergall at 6-13 and Attachment 4) When the
Agency provides a notice and the local health department agrees to be involved in the
notice, the Agency will encourage the use of the health department letterhead
. (See Exh.
3, Testimony of Kurt D
. Neibergall at Attachment 3) When the authorized party is
providing the notice and related documents, the Agency will not provide letterhead
because the notice, although approved by the Agency, is not official Agency business or
correspondence .
At pages 90-92 of the transcript, the Agency was asked if it would consider
revising Section 1505
.330(e) to state that the Agency "will" provide the responsible party
(revised to "authorized party" in Errata Sheet No
. 2) with a reasonable opportunity to
correct deficiencies in notice and community relations documents before issuing
4
disapprovals or approvals with modifications if the opportunity can be offered within the
Agency's review deadlines
. The Agency's first proposal provides that the Agency "may"
offer such an opportunity
. The Agency has proposed to change the language so that the
Agency "will" offer the opportunity .
At pages 92-93 of the transcript, the Agency was asked to consider clarifying an
ambiguity in the introductory language at Section 1505
.320, which might be construed as
creating an either/or scenario regarding the establishment of document repositories at
web sites and physical locations . It is the Agency's intent that the web site respository be
mandatory in all cases and that the physical repository also be required under certain
conditions if requested by the public . The Agency has proposed changes to eliminate any
ambiguity on this matter .
At pages 112-13 of the transcript, Ms . Hirner expressed concern that the contact
list provisions in Appendix A do not reflect the language in Sections 1505 .310(b)(2) and
1505
.315(b)(2)(D) (section numbers as revised in Errata Sheet No . 2) with regard to the
notification of occupants of off-site properties affected by contamination
. To address this
concern, the Agency has proposed changes to Appendix A consistent with the language
in Sections 1505 .310 and 1505 .315.
Errata Sheet No . 2 also contains a substantive change to Subpart C that is not in
response to issues raised at the first hearing
. Instead, it comes from a comment received
at one of the Agency's outreach sessions, At Section 1505
.320(b) a new subsection
(b)(3)
has been added to provide that system capacity for web site repositories must be
sufficient for anticipated demand
. Considering site-specific differences, there is no bright
line standard that can be proposed here . However, the general standard proposed by the
5
Agency serves as a reminder to those establishing web site repositories that system
capacity must be taken into consideration and gives the Agency some regulatory leverage
if complaints about inaccessibility are received from the public .
Finally, miscellaneous, non-substantive revisions are proposed in Subpart C and
throughout the draft to clarify and correct previously proposed phrasing and grammatical
errors.
THIS DOCUMENT FILED ON RECYCLED PAPER
6
BEFORE THE ILLINOIS POLLUTION CONTROL BOAJREC
EIV
E D
CLERK'S OFFICE
IN THE MATTER OF :
)
MAY -
9 2006
STANDARDS AND REQUIREMENTS
)
STATE OF
ILLINOIS
FOR POTABLE WATER WELL
)
R06-polution Control Board
SURVEYS AND FOR COMMUNITY
)
(Rulemaking - Land)
RELATIONS ACTIVITIES PERFORMED
)
IN CONJUNCTION WITH AGENCY
)
NOTICES OF THREATS FROM
)
CONTAMINATION (35 ILL . ADM. CODE
)
1505)
)
TESTIMONY OF SCOTT O . PHILLIPS ON PROPOSED REVISIONS TO FIRST
NOTICE PROPOSAL
My name is Scott Phillips . I am the managing attorney for the Division of Legal
Counsel's Bureau of Land and Bureau of Water Regulatory Section within the Illinois
Environmental Protection Agency
. Today I will testify about several revisions proposed
by the Agency in Errata Sheet No . 2 in response to questions and comments received at
the March 28"' hearing .
The first issue concerns a relatively simple drafting measure . At pages 86-87, the
Board asked that the Agency use "must" in place of "shall" where appropriate . The
Agency has made those changes throughout the proposal .
The phrase "responsible party" is the subject of the next two issues . The phrase is
used at Section 25d-3(c) of the Environmental Protection Act ("Act") (415 ILCS 5/25d-
3(c)) to identify persons who may be authorized by the Agency to provide notice in lieu
of the Agency to owners of off-site properties adversely affected by migrating
contamination
. It also is used at Section 25d-3(d) of the Act to identify parties who may
be subject to cost recovery actions by the Agency when the Agency has provided the
notice .
1
At pages 32-35 and 40 of the March 28`
h
transcript and again at pages 114-15
(Ms
. Himer's testimony), concerns were expressed by several participants that the phrase
"responsible party" should be defined in this proposal . The concern was that the phrase
carries with it connotations of legal liability for the release that is the subject of the
notice, and the Agency shares those concerns . Moreover, the Agency believes the phrase
should be interpreted differently for the community relations rules than for the cost
recovery rules .
The Agency's position is that this phrase should not have its traditional liability
connotations for purposes of the community relations requirements of Part 1505 . Rather,
it should be broad enough to accommodate parties who might be performing response
actions even though they have no legal responsibility to do so or have not been
adjudicated to have that responsibility . This scenario is most likely to arise in the
Agency's voluntary cleanup program, the Site Remediation Program (35 Ill . Adm
. Code
740), where developers and subsequent purchasers frequently enroll to clean up
properties previously contaminated by others
. Often these parties have community
relations capabilities and experience and might be willing to take on the task of providing
the notice . The Agency does not think it serves the public interest to exclude these
parties simply because they are not the parties who caused the release
. To the contrary,
they are well positioned to provide interested and affected persons with the information
about conditions at the site and the response action because they are the parties assuming
the responsibility for addressing the release .
One alternative for resolving the issue would be to define "responsible party" for
purposes of Part 1505 so that it would not have liability connotations
. From a strictly
2
legal perspective, this should work
. However, the Agency is concerned that the liability
connotations are so deeply ingrained in the phrase that there is a strong possibility of
resistance to use of the community relations procedures simply because parties will not
want to accept the label of responsible party
. In addition, the chances for confusion will
be increased because the Agency does expect that the phrase will carry it's traditional
liability connotations when it is used in the Agency's cost recovery rules to be
promulgated under Sections 25d-3(d) and 25d-7(b) of the Act
.
Therefore, the Agency proposes in its Errata Sheet No
. 2 to define and use the
phrase "authorized party" in Part 1505 when describing the parties authorized by the
Agency to provide notice in lieu of the notice the Agency is required to give
. This phrase
is used irrespective of the party's legal liability for cleanup of the release
. This
alternative should eliminate any misunderstanding or reluctance to participate in the
community relations activities by persons who associate "responsible party" with legal
liability.
Also on the issue of "responsible parties," the Board requested at pages 38-41 of
the transcript that the Agency consider revising the proposal so there is consistent use of
the term "responsible party" in Subpart C
. In the earlier versions, the Agency had used
several contextual references to describe parties working their way through the Subpart C
requirements
. In Errata Sheet No . 2, the Agency has proposed using where appropriate
the previously discussed "authorized party" in place of "responsible party" to describe
more consistently persons authorized by the Agency to provide the notice
.
At pages 53-56 of the transcript the Agency was asked to identify the other Parts
of the Board's administrative rules potentially affected by the potable water well survey
3
provisions in Subpart B
. These minimum standards and requirements for well surveys
will become operative when a person performing a response action "pursuant to
applicable Board rules" is required to perform a well survey as part of the response
action. The Agency also was asked to comment on whether the affected Parts should be
listed in Part 1505 and/or amended when opened in the future to cross-reference Part
1505 .
The Agency believes the following Parts will be affected by the Subpart B well
survey standards and requirements
:
1)
35 III
. Adm . Code 615
: Existing Activities in a Setback Zone or Regulated
Recharge Area
;
2)
35 Ill
. Adm. Code 616 : New Activities in a Setback Zone or Regulated Recharge
Area;
3)
35 111 . Adm. Code 620 : Groundwater Quality
;
4)
35 111 . Adm
. Code 704 : UIC Permit Program ;
5)
35 III . Adm. Code 723
: Standards Applicable to Transporters of Hazardous
Waste;
6)
35 Ill . Adm. Code 724
: Standards for Owners and Operators of Hazardous Waste
Treatment, Storage, and Disposal Facilities
;
7)
35 Ill
. Adm. Code 725
: Interim Status Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilities
;
8)
35 111 . Adm. Code 731
: Underground Storage Tanks ;
9)
35 Ill . Adm . Code 740
: Site Remediation Program ;
10)
35 Ill . Adm . Code 807 : Solid Waste
;
11)
35 Ill
. Adm. Code 811
: Standards for New Solid Waste Landfills
;
12)
35 111 . Adm. Code 815
: Procedural Requirements for All Landfills Exempt from
Permits;
4
13)
35 Ill . Adm. Code 817 : Requirements for New Steel and Foundry Industry Wastes
Landfills ; and
14)
35 111 . Adm
. Code 830
: Standards for Compost Facilities .
In addition, other Parts not listed here will be affected because of their
relationship to the listed Parts . For example, Part 724 will subsume Part 722 (Standards
Applicable to Generators of Hazardous Waste) if generators have releases of hazardous
wastes that require "response actions" (as defined in Part 1505 and distinguished from
"corrective action" requirements under the groundwater monitoring provisions) . Part 811
will subsume Part 814 (Standards for Existing Landfills and Units) for releases at existing
solid waste landfills that require response actions . Further, Parts 732 (Petroleum
Underground Storage Tanks) and 734 (Petroleum Underground Storage Tanks (Releases
Reported On Or After June 24, 2002)) would have been included on the list, but they now
contain well survey procedures equivalent to Subpart B and will not require reference to
Part 1505 .
Because of the broad impact of the well survey rules, the Agency chose to
propose a single Part with broad applicability language rather than attempt to open and
amend the several individual Parts . The Agency prefers not to list affected Parts in the
applicability section of Subpart B . The concern is that listing the Parts then may operate
as a limitation. Overlooked and subsequently adopted or amended Parts with response
action requirements would be excluded unless something very much like the Agency's
proposed generic language were included along with the listed Parts . For example, the
Agency is developing regulations for municipal waste transfer stations containing
contingency plan and closure plan requirements to investigate and address releases of
contaminants
. Once the new Part is adopted, Part 1505 would have to be reopened and
5
amended to keep the list of affected Parts current
. Although there might be ways of
drafting around these problems, the drafting alternatives would tend to defeat the original
purpose of listing the Parts
. The Agency thinks the better approach is to refrain from
listing the affected Parts in Subpart B but to cross-reference Part 1505 as the affected
Parts are opened or adopted in the future.
Finally, at page 92 of the March 28`'
transcript, the Agency was asked to consider
making mandatory the discretionary compliance monitoring requirement at Section
1505.335(b)(2)
. Additional discussion related to this issue is found at pages 35-38 of the
transcript
. As originally proposed, the compliance monitoring requirement provides that
the Agency "may" monitor implementation of approved community relations activities
and offers some examples of steps the Agency might take as part of its monitoring
activities
. At pages 36-38 the Agency testified that community relations coordinators
will be assigned to each case where a responsible party is authorized to provide the notice
as part of community relations activities
.
The Agency's community relations coordinators have a number of duties in
addition to those that will follow the adoption of Part 1505
. The primary functions of the
coordinators under Part 1505 will be to review the required documents, work with the
responsible parties to ensure the documents contain complete and accurate information
and that the interested and affected public has been identified, issue Agency final
determinations, and provide information to the public as Agency contact persons under
Sections 1505
.310(b)(3)(H) and 1505
.315(b)(3)(J) (as revised per Errata Sheet No
. 2).
Compliance monitoring also will be a part of the coordinator's job, but the distribution of
resources in this area will be uneven with some sites undoubtedly requiring a larger share
6
of these limited resources than others . The coordinators and their managers must make
these decisions on a on a case-by-case basis and within the context of the coordinators'
other duties .
The Agency has statutory authority pursuant to Section 4(e) of the Act (415 ILCS
5/4(e)), as well as implied authority, to monitor compliance with the rules it administers .
Section 1505 .335(b)(2) was added merely to make the parameters of the program clear to
participants and the public . Therefore, in Errata Sheet No . 2, the Agency proposes
removal of the provision from the proposal rather than turning it into a limitation on the
Agency's discretion to allocate its compliance and enforcement resources .
This concludes my testimony.
THIS FILING SUBMITTED ON RECYCLED PAPER
7
RECEIVEDCLERK'S
OFFICE
MAY -
9 2006
PROOF OF SERVICE
STATE OF It
I JKI
Pollution Control Board
I, the undersigned, on oath state that I have served the attached
Testimony of
Scott O. Phillips, Testimony of Gary P
. King,
Testimony of Kurt D . Neibergall,
and Agency's
Errata Sheet No . 2,
upon the persons to whom they are directed, by placing a copy of each
in an envelope addressed to
:
STATE OF ILLINOIS
COUNTY OF SANGAMON
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R
. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
(UPS -
Next Day)
Matt Dunn
Environmental Bureau Chief
Office of the Attorney General
James R. Thompson Center
100 W. Randolph, 12`h Floor
Chicago, Illinois 60601
(First Class Mail)
(Attached Service List - First Class Mail)
and mailing them from Springfield, Illinois on May
affixed as indicated above .
UBSCRIBED AND SWORN TO BEFORE ME
This
r5"
day of
ft~
,
2006 .
Notary Public
Bill Richardson
General Counsel
Illinois Dept
. of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
(First Class Mail)
Amy Antoniolli, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
(UPS
- Next Day)
~ ,
2006, with sufficient postage
''' Lfh) .1 ~q-k
a
BREN
DA
L
SEAL ~$
TAgy X
STATE
BOEOF
I
IS S
0%%o l.
N EXPIRES 1
00
1
THIS FILING SUBMITTED ON RECYCLED PAPER
rnnung
oervice
List . . . .
Page I of I
Total number of participants : 9
http ://www .ipcb .state .il .us/cool/external/casenotifyNew .asp?caseid=12877¬ifytype=Ser
. . .
5/4/2006
Party Name
Role
City & State Phone/Fax
1021 North Grand
Springfield
217/782
IEPA
5544
Petitioner
Avenue
P.O . Box
East19276
IL
927662794-
9807217/782-
Mark Wright, Assistant Counsel
Kimberly A . Geving, Assistant Counsel
Stefanie N . Diers, Assistant Counsel
312/853-
Sidley Austin LLP
One South Dearborn
Chicago
7000
Interested Party
Suite 2800
IL 60603 312/853-
7036
William G . Dickett
217/523-
Illinois
Environmental Regulatory Group
3150 Roland Avenue
Springfield 4942
Interested Party
IL 62703 217/523-
4948
Katherine D . Hodge, Executive Director
312/726-
C_hica_oo Legal_
Clinic
205 West Monroe Street, Chicago
2938
Interested Party
4th Floor
II 60606
312/726-
5206
Keith I . Harley
Andrews Environmental Engineering,In_c .
Springfield 217-787-
Interested Party
3535 Mayflower Blvd
IL 62707 2334
Kenneth W . Liss, L .P.G .
Illinois De_pa_rtment of Public] ith~D_ivision of
Environmental Health
525 West Jefferson
Street
Springfield
Interested Party
IL 62761
Eric Portz
Jerry Dalsin
